The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-11-08

"ln Bridcwclrs case II was claimed that
the Judgment granting him bail was con-
elusive in his favor OF the right 90 bail
after Indictment, but this court held that
II was not; that its protective force in his
favor ended when the cowt OF competent
jurisdiction took charge of him. The
former judgment was in his favor, but was
not conclusive after indictment for muir
der, because the conCluslyCncss OF II iudg-
mcnt IN such habeas corpus trial de-
pends wholly on the statute, and IL makes
the Judgment in favor Of the prisoner con
elusive only until he shall he dealt with 10y
court of competent jurisdiction.
'ln citing the cases above mentioned,
we would not be understood to approve
all Of the language of the opinions. Each
case was undoubtedly decided right but
the language OF the opinions might have
been more happily chosen, as We are now
convinced by the thorough revision to
which one investigation of this case has
led. We are especially dissatisfied with
the announcement in cx parte Pattison
that mistrial will furnish grounds for
new writ and the production of new tcsti-
mony, and the remark about giving
jurisdiction il not accurate. II is not
n question of jurisdiction, but of the
conclusiyeness of the former judgment ~
q bar We are satisfied that the only thing
which can avoid the bar tx some new state
OF the ease, which, in and of itself, pre-
sents ground for granting bail without
regard to, and independent OF, tho tcsti-
mony ON the iirst trial The circumstance
of mistral might be influential ON hear
ing, hut cannot Of itself bc held To avoid
the bar. In no ease can the testimony on
the first trial be- looked TO us factor in the
second. 1t has no place in the second
trial
"fhc language OF the opinion in cx parte
Brdcwcll might well have been moro
specific, but applied to the ease before the
court cannot be misunderstood"
JUSTICE ARNOLD READ
lengthy opinion concurring in Justice
Campbcll's opinion, taking the same view
OF the operation and effect OF Section 2,5N
Of the code, and celebrating the same. lie
said: "All matters of fact which existed,
aud which were or might have been liti-
gated ON such (lirstl Trial, would bc CON
cludcd by the Judgment, but matters OF
fact arising after the rendition OF the judg-
mcnt, such as unusual and oppressive de
lay in the prosecution, or serious injury Ia
the prisoners health, likely to prove fatal
ON account Of confinement, might bc in
ycsligatcd ON another writ, for they were
not and could not have been examined on
the iirt writ, and To investigate them ON
another writ would not he the trial Of the
same cause, on the bringing Of the same
matter in question again.
"Ncw evidence M relating TO add facts,
or facts which existed at the time OF the
trial on the tnst writ, would not be- suili.
cicnt to avoid the bar OF the Judgment on
the inst writ, or TO authorize the issuance
Of another writ in the same cause. Tho
utmost extent 10 which the jurisdiction ol
another writ could be carried would be- 10
consider the caso of the applicant NJ lnada
by facts which have actually happened
since the trial on the first writ. This must
bo the general rule, but II the extreme
eases suggested in the argument OF coun-
scl should ever occur, such ~ indisputablc
proof discovered ol the judgment denying
bail on habcas corpus of the party alleged
10 have been killed by the prisoner being
alive, nppphcnd that this court or amy
court would consider them ~ exceptional
~ t0 avoid the bar OF the judgment deny.
ing hail, and warrant the Issuance OF
another writ and new investigation
lie said that lac did not understand the
language employed in cX parlc lattison Ia
mean more than that q mislrial by petit
jury after judgment denying bail would bc
one fact which, In connection With others
occurring after the Judgment would be-
sufficient la cntitlc tie prisoner to q second
writ ani another investigation ON such
new facts, hut such new investigation
would not aud could not bring into con.
sidcuiliun OF rchearing facts heard or cN-
isting when the judgment WAS rendered.
"li more was intended to be- said II seems
10 b. incorrect and misleading. 4 judg
mcnt ON hahoas corpus operates for and
against the prisoner only a. the extent and
the manner allowed 10y the statutes. II II
" In his favor and hc II discharged, with or
without hail, lac may be- rcarpslcd and i'm.
prizonod for the same cause when indicted
therefore, or by court oi competent
Jurisdiction. lfit h against him, aud lac
is denied bail, appeal is his only remedy.
ut is impossible. under the statute, to
give judgment on hubcns corpus such ~.
ciprocil operation for aud against the pfis.
oncr that ii hc il denied bail before In.
dirtmrnt and B uitcrNurd indicted lac may
then annul the judgment against him hy
another examination ul the question Oi his
guilt or Innocence upon a new writ. with
out regard lo the statute, the fact ol the in
dirlmcnt being found IN such instance
would not change the legal aspect ul the
case in his favor, but rather against him.
lie then showed the practice IN such
eases NJ common law which allowed inter-
minabc trials, to prevent which Section
25gI was enacted, etc, aud construcs the
statutes ~ applicable Ia creating bar Ia
this cl,sc, aud concludes ~ follows
81 vote 10 affirm ihc judgment, not upon
the ground that the prisoners are guilty
beyond reasonable doubt Of the crime
charged, for that question directly involved
In the iint habcas corpus proceeding Is not
now before the court. but because dD not
find In the rrcord sufficient proof oi facts
arising subsequent to the judgment on the
fn.t writ 10 avoid the bar Of that judg.
mcnt."
The ease cx pnrc Jones s. Hamilton
and l.. VI. Euhank on appeal from Chan
ccllor rcyton on habcas corTsS was then
called Attorney General Miller asked
that the hearing Of the ease bc postponed
until "Wednesday next "a allow him the
opportunity 10 ~ 10 Nicksburg tomorrow
tD vote.
ThccouH declined todefcrihc argument.
Thcrcup0n Col. Nugcnt, Of counsel for rc-
lntors, opened the argument, but before he
concluded the court adjourned until 10
O'Clock tomorrow morning.
Otber Decisions.
JAcKsox, Mss, Nov. THE supreme
court tplay rendered decisions In the fol-
tpttiuV guupss